Also known as: regulatory taking · regulatory takings · regulatory taking doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional doctrine that determines when government regulations affecting property use constitute takings requiring just compensation under the Fifth Amendment. Courts weigh the economic impact of the regulation on the claimant, the extent of interference with distinct investment-backed expectations, and the character of the governmental action. Landmark preservation and similar land-use measures that substantially advance legitimate public interests while leaving the owner with reasonable beneficial use are not compensable takings.
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Roberto Reyes purchased several aging warehouses intending to demolish them for high-rise towers. After the purchase the city designated the corridor a heritage district and barred demolition while allowing renovation and commercial leasing. Reyes retained the ability to renovate and lease the buildings for income. The designation advanced historic preservation goals without eliminating all economically viable use of the property.
Raymond Ramos sought a building permit to expand his commercial property. The city conditioned approval on Ramos dedicating a portion of the land for a public greenway and bike path. The required dedication lacked an essential nexus to the proposed expansion impacts and was not roughly proportional to any demonstrated burden. Ramos challenged the condition as an uncompensated taking of his property interest.
Ricardo Rojas owned several homes in a declining neighborhood. The city condemned the properties as part of a comprehensive plan to transfer the land to private developers for a mixed-use project expected to increase tax revenue. The plan served a public purpose of economic revitalization even though the ultimate use was private. Rojas received compensation but challenged whether the taking satisfied constitutional requirements.
Rosa Ruiz owned a campground destroyed by flooding. The county enacted an interim ordinance prohibiting reconstruction in the canyon while studies continued. The ban lasted several years and prevented any use of the property during that period. Ruiz sought compensation for the temporary deprivation of all beneficial use.
Rajesh Rao owned undeveloped parcels around Lake Tahoe. A regional planning agency imposed successive moratoria totaling several years that prevented all development while environmental studies proceeded. The restrictions were temporary and applied to many owners to protect the lake basin. Rao claimed the extended delay effected a taking of his investment-backed development rights.
Radiance Media owned oceanfront lots whose dry sand area had long been treated as private property under state common law. A state supreme court decision reinterpreted the law to hold that the public held a right to use the dry sand area. The ruling eliminated the owner's prior right to exclude the public without any physical invasion by the state. Radiance Media alleged a judicial taking of its property interest.
Courts apply a multi-factor balancing test that examines the economic impact of the regulation on the claimant, the extent to which the regulation interferes with distinct investment-backed expectations, and the character of the governmental action. The test determines whether the regulation goes so far as to be the functional equivalent of a direct appropriation.
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…a given regulation would be seen as going "too far" for purposes of the Fifth Amendment. In 70-odd years of succeeding "regulatory takings" jurisprudence, we have generally eschewed any " set formula' " for determining how far is too far, preferring to "engag[e] in . . . essentially ad hoc, factual inquiries." Penn Central…
…See also Lucas v. South Carolina Coastal Council , 505 U. S. 1003, 1032, n. 18 (1992) (South Carolina could defend a regulatory taking "if an objectively reasonable application of relevant precedents [by its courts] would exclude . . . beneficial uses in the circumstances in which the land is presently found"); Bishop…
…we explained why similar practical concerns (among others) undermined the use of the "substantially advances" formula in our regulatory takings doctrine
…that Members of this Court view as unwise or unfair. This case inaugurates an even more recent judicial innovation than the regulatory takings doctrine
…as made applicable to the States through the Fourteenth Amendment, does not require compensation as a remedy for "temporary"
A regulation does not effect a taking when it leaves the owner with reasonable beneficial uses and advances legitimate public interests such as historic preservation. The mere loss of the most profitable use or some reduction in value is insufficient to trigger compensation.
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Regulatory takings analysis applies when government limits use without authorizing physical invasion. A per se physical taking occurs when the government grants third parties recurring rights of physical access to private property, appropriating the owner's right to exclude regardless of economic impact.
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Temporary restrictions are evaluated under the multi-factor test rather than a categorical rule. Courts consider the duration of the delay, the owner's expectations, and whether the restriction leaves any viable use during the period.
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